Mar­riage, divorce and sep­a­ra­tion — when should you change your will?

In Brief

Mar­riage, divorce and sep­a­ra­tion are all events which require you to change your Will.

Marriage

If you mar­ry it is imper­a­tive that you make a new Will.

If you mar­ry after you have made a Will, the Will is auto­mat­i­cal­ly revoked (or can­celled). The only excep­tion to this rule is if the Will is made in con­tem­pla­tion of mar­riage. If you are plan­ning to mar­ry in the near future and you wish to have a Will made in con­tem­pla­tion of mar­riage, you should obtain legal advice from your solicitor.

Divorce

Unlike mar­riage, divorce does not auto­mat­i­cal­ly inval­i­date a Will. Con­se­quent­ly, when a per­son divorces they should update their Will immediately.

A divorce only revokes or can­cels any gift to your for­mer spouse.

It also can­cels your for­mer spouse’s appoint­ment as Execu­tor, trustee or guardian in the Will but will not can­cel an appoint­ment of a for­mer spouse as trustee of prop­er­ty left on trust for ben­e­fi­cia­ries that include chil­dren of both you and your for­mer spouse.

How­ev­er, there is the abil­i­ty for a for­mer spouse to argue before the court that a deceased per­son did not intend that the Will be revoked by the divorce. A suc­cess­ful appli­ca­tion before the Supreme Court could see your Estate pass to your for­mer spouse, despite the fact that you divorced. Although it is rare for these appli­ca­tions to suc­ceed, it can occur. To avoid the risk of such a claim, upon divorce you need to have an updat­ed Will.

Separation

Unlike mar­riage and divorce, sep­a­ra­tion itself does not affect the valid­i­ty of a Will.

It is there­fore of the utmost impor­tance that upon sep­a­ra­tion you update your Will immediately.

There have been sev­er­al cas­es where a per­son has died dur­ing the peri­od between sep­a­ra­tion and divorce and their for­mer spouse has been enti­tled to the whole of the Estate, either due to a fail­ure to update the Will or by not hav­ing a Will in place at all.

Con­clu­sion — Ensure your Will is kept current

I can­not stress enough the impor­tance of hav­ing a cur­rent Will. Wills should be reviewed at every sig­nif­i­cant event in one’s life but it is imper­a­tive that it is done prompt­ly upon mar­riage, divorce and separation.

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